The case in plain terms
Many Ontario couples separate but keep living in the same house while one spouse keeps paying the bills. Can the other spouse later claim child and spousal support for those years?
In El Sherif v. Bakr, the Court of Appeal for Ontario addressed that question and allowed the husband's appeal in part. The parties married in 2000, agreed that they separated on August 6, 2019, and kept living in the matrimonial home with two of their three children until trial began in November 2024. The trial judge found that the husband covered all of the expenses for the wife and the children throughout that period.
The wife's application asked for support to start once the parties lived physically apart, and she never brought a motion for support before trial. Even so, the trial judge ordered the husband to pay retroactive child and spousal support from January 2020 to December 2024, totalling $313,554.79. The Court of Appeal set that award aside (paras. 32, 64).
Citation and where to read it
El Sherif v. Bakr, 2026 ONCA 752 (Court of Appeal for Ontario, Paciocco, Sossin and Madsen JJ.A.; reasons by Madsen J.A., released October 23, 2026), on appeal from 2025 ONSC 4989.
Official reasons: Court of Appeal for Ontario (Lexum)
CanLII: 2026 ONCA 752
Legislation: Divorce Act, ss. 15.1 and 15.2; Federal Child Support Guidelines, s. 1; Family Law Rules, r. 22
What the Court decided
Support while living together is possible, but rare
The Court held that there is no hard and fast rule against support while spouses still live together: neither s. 15.1 nor s. 15.2 of the Divorce Act, nor the Federal Child Support Guidelines, restricts support to spouses who live apart (para. 17). But it was clear about the usual result: "When the needs of the children and/or spouse are being met during the period of post-separation cohabitation, in a manner consistent with how those needs were met before separation, an award of support during that period will be rare." (para. 16)
For a claim made while the parties still share a home, the court considers the basis for entitlement, the usual support calculations, what the payor already pays for the recipients, and preserving their standard of living if the payor can afford it (para. 19). In the Court's words: "The court ought not interfere with the status quo if family expenses are being reasonably met." (para. 19)
Retroactive claims get a fuller review
When support is claimed after the fact for a period of shared living, the analysis is more expansive (para. 22). The Court listed eleven factors, including both incomes, guideline amounts, whether payments matched pre-separation spending, blameworthy conduct by the payor, changes in net worth, windfall, hardship, and "whether and when the recipient provided notice" that needs were not being met (para. 27). The Court stressed that this "is not a dollar-for-dollar calculation or a micro-accounting" (para. 25).
Notice decided this case
The Court held that "the retroactive support order must be set aside based solely on the wife’s failure to provide notice." (para. 31) Even with notice, the order would fail: the husband had paid all household expenses as he had during the marriage, his net worth did not substantially change, his payments were roughly comparable to guideline amounts, and there was no finding of blameworthy conduct (para. 31). The related post-separation adjustment of $71,358.29 and the wife's $20,949.53 contribution to special expenses were also set aside (para. 33).
Requests to Admit: 20 days, and no traps
The husband also argued that the wife was bound by deemed admissions because she did not answer one of his Requests to Admit. The Court read the trial judge as having permitted the withdrawal of those admissions and declined to interfere, while noting that a written ruling applying the three-part test would have been preferable (paras. 48-50). It confirmed the 20-day response period under r. 22(4) and noted that some versions of the Trial Scheduling Endorsement Form still state ten days, but rule 22 governs, not the form (para. 37, footnote 6). The purpose of these requests "is to streamline, not to “trap” the other party." (para. 37)
The Court adjusted the equalization payment to $319,012.62, upheld the $40,000 income imputed to the wife, and made no order as to costs (paras. 58, 62, 67).
What changed
The Court of Appeal now sets out a non-exhaustive list of factors for support claims covering the time separated spouses still share a home (para. 27). Paying the household bills can satisfy support obligations, but only if the overall objectives of child and spousal support are met. The Court warned that where the payor has a very high income, the income gap is significant and the compensatory basis for support is strong, merely covering family expenses may give the payor a windfall: the payor can build savings while avoiding support, and the recipient stays disadvantaged (para. 24). For Requests to Admit, the Court gave seven points of practical guidance (para. 43).
Who this affects
Spouses who have separated but still live in the same home
Higher-earning spouses who keep paying the mortgage, groceries and other family costs after separation
Lower-earning spouses whose needs, or their children's, are not being met
Anyone in a family case who serves or receives a Request to Admit
Practical takeaways
Put it in writing early. If your needs or your children's needs are not being met, say so in your pleadings or seek interim support. Notice was decisive here (paras. 27(k), 31).
Keep records of what you pay. Mortgage payments, groceries, gas and e-transfers to the family are relevant when proven (para. 30, footnote 4).
Bills are not always enough. A significant income gap, a strong compensatory claim, or a payor whose net worth grows while the other spouse falls behind can change the result (para. 24).
Control is a red flag. Blameworthy conduct by the payor is a listed factor (para. 27(g)). The Court pointed to Backstein, where insisting on covering expenses instead of paying support was found to be a control mechanism (footnote 3), and noted that the trial judge here made no such finding (para. 31(g), footnote 5).
Answer Requests to Admit within 20 days. Withdrawing a deemed admission needs consent or the court's permission (r. 22(5); para. 41).
FAQ
Can I get support if we are separated but still living in the same house in Ontario?
Yes. There is no hard and fast rule against it (para. 17). But if your needs are being met as they were before separation, a support award for that period will be rare (para. 16).
Can I claim retroactive support for the time we lived together after separation?
You can ask, but the court weighs factors including incomes, guideline amounts, windfall, hardship and whether you gave notice that your needs were not being met (para. 27). In this case, the lack of notice alone defeated the claim (para. 31).
Does paying the household bills count as support?
It can. The question is whether, overall, the objectives of support were met. It is not a dollar-for-dollar calculation (para. 25). Here, the husband's payments met the "fair standard of support" (para. 32).
How long do I have to respond to a Request to Admit in Ontario family court?
Twenty days under r. 22(4) of the Family Law Rules. You are considered to have admitted the facts unless you serve a response (Form 22A) denying them, or refusing to admit them with reasons, within 20 days (r. 22(4)). The Court noted that rule 22, not a form, governs the timeline unless the court sets a different one (para. 37, footnote 6).
Can a deemed admission be withdrawn?
Yes, with the other party's consent or the court's permission. The court asks whether there is a triable issue, whether the admission was inadvertent or resulted from mistaken instructions, and whether withdrawal would cause prejudice that cannot be compensated (r. 22(5); para. 41).
Book a consultation
Francis Mehr LLP has served Ottawa since 1974 and handles family law matters. Whether you are paying the bills under one roof or waiting for support, we will review your records and your options on spousal support, child support and a separation agreement. Book a consultation or call (613) 226-1011.
This article is general information, not legal advice. It summarizes a published Ontario Court of Appeal decision; outcomes depend on your facts and documents, so consult a lawyer about your situation. Written by the lawyers of Francis Mehr LLP.
